As a special post-Halloween treat for the month of November, a series of guest blogs will be appearing here examining the latest IPCC report. The essays are the latest production of the Environmental Law Collaborative, a group of environmental law scholars whose goal is to meet and work collaboratively to discuss and offer solutions for environmental law’s major issues of the day. ELC facilitates dialog among thought leaders on environmental policy priorities, practical implementation strategies, assessment mechanisms, and cooperative analysis of science, economics, and ethics. It has become increasingly apparent that, although environmental policy benefits from a robust drive for the dissemination of information, environmental policy is also influenced by strategic misinformation and effective use of persuasive communication. To advance society and secure welfare at local and global scales, our professional activities must contribute to resolution of the divisive issues that confront our environment.

News reports are abuzz with China's amendments to its environmental protection law that will come into effect in January 2015. The amendments reportedly add several new provisions that primarily strengthen enforcement by increasing the amount of fines imposed on non-complying polluters on an ongoing basis (that is for each violation) as opposed to a single pollution, as well as providing for some form of punishment such as demotion of officials that fail to enforce China's pollution control laws. It also reportedly supports whistle blowing to enable citizens to take action much like citizens suit provisions in the United States. A report of China's new law is available here.

Without having the benefit of reviewing the actual laws, it is hard to comment about the prospect of China's new laws. However, one must admit that at the very least it is a step that demonstrates China's serious commitment to tackling domestic environmental problems that are steadily becoming catastrophic in proportion. It is highly symbolic since it is a big step towards action as opposed to rhetoric.

Yet, much as I hate to sound pessimistic, the law fails to make any fundamental changes to addressing its environmental woes. The law remains essentially regulatory; essentially dependent on government officials to enforce. Will the threat of demotion, if found guilty of non-enforcement, suffice to improve enforcement in a country the size of China? Can a company influence the law-making process so as at least make compliance easier, so as to avoid the problem of facing fines for non-compliance? Will a large enterprise be affected by naming and shaming? I ask these questions because the law in its original form (here) was not entirely lame. The law had enough room for stringent enforcement, including preventing the importation of obsolete technology. However, these provisions were never enforced. The new law appears to focus on enforcement, but assumes that greater fines, threats of demotion, and potential for shaming will make a dint. The sad reality is that these tactics have not been successful even in developed countries. Can they be effective in a country where transparency is sorely lacking?

Recently I have been reading Windfall: The Booming Business of Global Warming, by the journalist McKenzie Funk. It is a fun and illuminating, if somewhat frightening, read. Funk takes to the road—in a trans-planetary sense—to report on the entrepreneurs, engineers, hedge funds, investment banks, corporations, nations and others who are angling to profit from climate change. The prose is accessible and engaging, the perspective deeply informed. The chapters would serve as excellent conversation generators in the classroom.

I mention this not only to share a good read, but also because the concept at the center of Funk’s book is closely related to an interdisciplinary study I am undertaking with the visual artist and landscape photographer Alex Heilner. Alex and I hope to explore the industrialization of the Arctic that will inevitably come with increased access to offshore oil and gas and to onshore mineral and carbon deposits, with the opening up of the Northern Sea Route and the Northwest Passage that makes transport of extracted resources more feasible, with easier cruising for tourist vessels, and with the re-focusing of the world’s attention on the Far North. The process, of course, is already underway. Last summer Alex and I embarked on our maiden voyage, a two-week road trip across North Norway. A selection of Alex’s photos is here.

I am still working on sorting through my interview notes and observations to craft an intelligent story about what is going on up there, but, in short, what we found was an intriguing instance of interlocal competition on the Arctic frontier. Ports, municipalities and private investors are all looking for opportunities to build facilities that can serve the Arctic oil and gas and maritime shipping industries. Planners and economic development officials are dreaming big. Everyone in North Norway wants to be a climate “winner.” There is some resistance to increased Arctic drilling from the Green Party, but Norway is, as one interviewee told me, a “benevolent petrostate,” and for most people “oil and gas is king.” As a result, North Norway—long a land of cod fishing and reindeer herding and mining for iron ore, and a place absolutely devastated by WWII—is in growth mode. It is a microcosm of the broader changes Funk writes about, making the global phenomenon visible in development pressures and land use changes in a few of the small places at the top of the world.

In late January Royal Dutch Shell announced that the company was putting an end to its efforts to drill exploratory wells in the Arctic Ocean off Alaska’s north coast this summer, and intimated that it may never drill there, at all. The announcement was timed with other recent climate news. Just a day or two later the State Department released its Supplemental Environmental Impact Statement for the 2012 Presidential Permit application for the proposed Keystone XL pipeline. Two weeks after that it was revealed that the Arctic archipelago of Svalbard has been experiencing average temperatures 15 degrees C above normal. But I don’t think Shell made its decision because it worried what President Obama will do with Keystone XL, or because of the ever-mounting evidence of climate change impacts in the Arctic. Rather, the company probably made the decision because the Ninth Circuit held the week before, in Village of Point Hope v. Jewell, that the environmental impact statement prepared for the 2008 lease sale in the Chukchi Sea violated the National Environmental Policy Act.

The Ninth Circuit’s decision is important, of course, because of its immediate impact on oil and gas drilling in the U.S. Arctic. It is also notable, though, from a teaching perspective, for at least three reasons:

First, the decision affirms, in one of the most visible environmental battles of the day, that NEPA remains an important, even essential, tool in the environmentalist’s toolkit, capable of stopping major projects from moving forward, or at least stalling them for the time being. This remains as true as ever, even though NEPA is just a “procedural” statute.

Second, the decision provides a nice illustration of how courts treat the “missing information” requirement under Section 1502.22 of the Council on Environmental Quality’s NEPA regulations in the context of a tiered environmental review. Under this provision, an agency must either obtain information that is “essential to a reasoned choice among alternatives” or explain why such information was too costly or difficult to obtain. But the Outer Continental Shelf Lands Act explicitly provides for multiple levels of environmental review as an offshore lease moves from the original lease sale to actual production and development. Here, the court found that the Bureau of Ocean Energy Management’s analysis of the impacts of a major oil spill did not fail even though it lacked specific information about such things as species population numbers, migratory patterns and breeding habits. According to the court, that data would be relevant at a later stage. Increasingly, it seems that knowledge of programmatic EIS’s is essential to understanding how NEPA works today.

Finally, the decision illustrates how far afield an agency has to go in a technical analysis to run afoul of the statute, and what kinds of evidence attorneys use to demonstrate the “arbitrary and capricious” application of agency expertise. In this way, it stands as a contemporary comparable to the Westway litigation and the Second Circuit’s decision in Sierra Club v. U.S. Army Corps of Engineers, with its improperly timed studies and ignored population of winter bass among the piers on the Hudson River. Here, BOEM estimated the amount of recoverable oil in the Chukchi lease area by estimating production from a theoretical first offshore oil field, an amount that totaled the nice round number of one billion barrels. One apparent reason for focusing on the first field, rather than the entire lease area, was that the BOEM analyst wouldn’t have the relevant data for the larger analysis for two months. Not exactly the best reason to take a predictive approach to a five-year lease sale in a frontier region of the Arctic. And according to two of the judges on the panel, at least, an arbitrary one.

There is, of course, more: A series of emails that do not paint the agency staff in the best light, ultimately whittling down a range of options to a single number. Skeptical comments on the draft analysis from other BOEM staff. Highly critical comments from EPA and Fish and Wildlife. Public comments that make plain some of the more obvious flaws in the logic of BOEM’s decision. Courts will defer to agency expertise, and that deference reaches its height out here in the predictive realm, but get enough in-house experts, sister agency staff and clear-thinking citizens to disagree and you might just have a winning case.

At the end of the day, it was probably most damaging that BOEM chose a number that represented “the lowest possible amount of oil that was economical to produce as the basis for its analysis.” This number then factored into all of the environmental impact assessments, including seismic effects, habitat effects, and effects of the sale on global warming, as well as Fish and Wildlife’ determination that the lease sale would not jeopardize listed species. As it turns out, it was a close call on the spectacled and Stellar’s eiders. Even a slightly higher estimate may have resulted in a jeopardy finding.

That, students will see, is a bad fact for the defense, a good one for the plaintiffs.

Whatever term you choose to describe the technique, hydraulic fracturing and horizontal drilling of oil and gas wells continues at a fast pace. The law, too, is quickly changing. If you're teaching or writing in this area this fall, I've listed some of my favorite resources below. Some of these aren't so new--they're just helpful (I think). This post describes sources associated with unconventional oil and gas development generally--not just fracturing, which is one stage within a larger development process.

The relevant formations: Much of the oil and gas produced in the United States comes from unconventional oil and gas formations -- defined by Q.R. Passey et al. as “hydrocarbon-bearing formations and reservoir
types that generally do not produce economic rates of hydrocarbons without
stimulation"--meaning that something more than drilling is required. These formations include coalbeds, tight sandstones, and shales, but shales contain the most abundant hydrocarbons. This oil and gas comes from organic matter that was deposited "along the margins of lakes or seas" millions of years ago. The quantity and type of oil and gas formed from this organic matter depends on a number of factors, including the type of organic matter deposited and the quantity of sunlight and nutrients it had; the rate and amount of organic matter destruction by microbes, oxidation, and other processes; and the mixing and diluting of this organic matter with other substances as sediment built up and the matter was trapped within rocks. Heat and the maturity of the organic matter and rock are also important: in most gas-containing shales, geologists would normally expect to see oil due to the type of organic matter there, but the shales are "mature" and were subjected to high heat, producing residual gas trapped within the rocks. All of the above is a summary of Q.R. Passey et al.'s work, which does a much more accurate job of explaining the oil and gas production process.

The technology: It's not only fracturing that has caused domestic oil and natural gas production to rise dramatically. There are three key changes that contributed to the modern boom. First, wells that will eventually be fractured are often drilled with a horizontal drilling technique--drilling vertically down to a formation (sometimes as far as 12,000 feet--see this Halliburton document for various formation depths) and then laterally through the formation to expose more surface area, and thus more oil and gas. Often, the portion of the formation targeted is quite narrow--often less than one meter thick, for example.

Second, hydraulic fracturing is a key technology, but it has (as industry notes) been around for a long time. Depending on how you parse terms, you could trace it back to the 1800s, when companies used nitroglycerin to break up underground formations. The technique has, of course, changed quite a bit since then. The fracturing used from about 1949 and on tended to use very heavy gels and large quantities of proppant (sand) to prop open fractures when they were formed. Other older fracs used mostly water. But what really changed in the late 1990s was the use of water (lots of it) combined with some chemicals, in a sort of hybrid of the earlier gel and water techniques. Energy companies, with government support, developed this slickwater fracturing technique in Texas's Barnett Shale--and more recently transferred it to other formations. The water, injected at very high pressure down a well, rushes out of the perforated portions of the well and forms fractures in the formation around those portions. Acid injected before the water can also help form fractures.

The third key technological component is the use of multiple, staged, fractures along one wellbore. Fracturing companies separate the well into different intervals (think of "compartments" within the horizontal well) using equipment called packers. The companies fracture each interval, which greatly enhances well production.

The regulation: I've written earlier posts about federal exemptions for oil and gas and fracturing. These exemptions, and tradition, leave much responsibility to the states, municipalities, and regional governments. But the regulation of oil and gas development is very much in flux.

The Fish and Wildlife Service has also begun to be more active in this area. On July 18, 2013, it issued a final rule listing the diamond darter--a species in the Marcellus Shale region--as endangered.

State: State regulation continues to change quickly, with Nebraska being one of the most recent states to propose required disclosure of fracturing chemicals. In January 2013, Mississippi approved rules requiring that surface casing (steel lining cemented into the well) extend 100 feet below groundwater, and the rules also require chemical disclosure. In 2012, Utah enacted new rules requiring chemical disclosure and that wells be pressure tested before drilling and fracturing (thus helping to verify that the wells can withstand the high pressures of fracturing), among other protections. Also in 2012, Colorado implemented requirements for testing of water quality prior to drilling and fracturing (requiring testing of a maximum of four water sources around each well) and made other changes. Further, Ohio enacted SB 315 and SB 165 (2012), and West Virginia enacted HB 401 (2011), all of which modify oil and gas development rules. Over the past few years, Arkansas, Montana, and other states also have changed their rules to address fracturing. For some recent summaries of state regulations, see Resources for the Future's The State of State Shale Gas Regulation and its Shale Maps; summaries and a report from the National Conference of State Legislatures; and American Law and Jurisprudence on Fracing by Haynes Boone.

Local and state: The Pennsylvania Supreme Court has still not issued an opinion regarding the constitutionality of Act 13, which required municipalities to allow drilling and fracturing in nearly all zones and allowed them to impose a fee on unconventional gas wells. A commonwealth Court in Robinson Twp. v. Commonwealth, 52 A.3d 463 (Pa. Cmwlth. 2012) struck down portions of the Act as unconstitutional, finding that it was a substantive due process violation to require municipalities to accept this industrial activity in most zones. In Anschutz Exploration Corp. v. Town of Dryden, 35 Misc.3d 450 (N.Y.
Sup., 2012), and Cooperstown Holstein Corp. v. Town of Middlefield, 106 A.D.3d 1170(N.Y.A.D.
3 Dept. 2013), New York trial courts determined that despite state language preempting laws "relating to the regulation of oil and gas," towns may use their land use authority to prohibit natural gas development. A West Virginia court, on the other hand, found Morgantown's hydraulic fracturing ban preempted because of the relatively comprehensive (but not directly preemptive) state oil and gas law. See Northeast Natural Energy LLC v. City of Morgantown, Civil Action No. 11-C-411 (W. Va. Circuit Court 2011). In Colorado, where the citizens of Longmont banned hydraulic fracturing, the Colorado Oil and Gas Association made a similar argument against the ban--essentially arguing that Colorado's oil and gas rules occupy the field. The state's Oil and Gas Conservation Commission was reportedly recently joined in the suit.

Industry best practices and recommended state regulations: The State Review of Oil and Natural Gas Environmental Regulations has guidelines for how states should regulate drilling fracturing, which are voluntary. If states agree, STRONGER reviews state programs for compliance with these guidelines. The American Petroleum Institute also has a number of suggested best practices for hydraulic fracturing, and industry and environmental groups have proposed fifteen performance standards through the Center for Sustainable Shale Development.

Courts: Go here to see Columbia Law School's digest of hydraulic fracturing cases and here for Arnold and Porter's chart of hydraulic fracturing cases. In 2008, the Texas Supreme Court in Coastal Oil v. Garza, which held that an individual could not recover trespass damages for the drainage of natural gas caused by fractures that extended into a mineral estate, but a federal district court in the West Virginia case of Stone v. Chesapeake Appalachia, 2013 WL 2097397 (N.D. W.Va. 2013), recently disagreed, finding, in denying summary judgment to defendants:

"[T]his Court finds, and believes that the West Virginia Supreme Court of
Appeals would find, that hydraulic fracturing under the land of a
neighboring property without that party's consent is not protected by
the “rule of capture,” but rather constitutes an actionable trespass."

There's also a split among district courts (and possibly circuit courts) on whether the Migratory Bird Treaty Act requires some sort of action directed at a bird in order for the actor to be liable. When birds dies in North Dakota Bakken Shale waste pits, the federal district court found that this was not enough to make the oil company liable for a "take": "The terms “take” and “kill” as found in . . . the Migratory Bird Treaty Act are action verbs that generally denote intentional behavior." See U.S. v. Brigham Oil
and Gas, L.P., 840 F.Supp.2d 1202, 1212 (D.N.D. 2012). The U.S. District Court for the Southern District of Texas, on the other hand, found that "[i]f an operator who maintains a tank or pit does not take protective
measures necessary to prevent harm to birds, the operator may incur
liability under federal and state wildlife protection laws," including the MBTA. United States v. Citgo Petroleum Corp., 893 F.Supp.2d 841, 847 (S.D. Tex. 2012).

Science: Recent and semi-recent papers have been released that further describe the links between Class II underground injection control wells and induced seismicity, including in Dallas and Fort Worth, Texas, Oklahoma, and Ohio. Nathaniel Warner and other authors who published an earlier study on potential methane migration from Marcellus Shale wells published a more recent paper exploring brine in shallow aquifers. D.J. Rozell and S.J. Reaven also have a good paper addressing "five pathways of water contamination: transportation spills, well casing
leaks, leaks through fractured rock, drilling site discharge, and
wastewater disposal." For those looking for an overall summary of potential environmental impacts, the National Park Service produced a useful document in 2008.

With respect to climate, MIT researchers published an interesting (and potentially disturbing) report suggesting that cheap gas threatens to substantially delay technologies like carbon capture and storage. The International Energy Agency's "Golden Age of Gas" report also warns that gas alone will not lead to a goal of stabilizing average global temperature increases to 2 degrees Celsius. Natural gas displaced coal in U.S. electricity generation in 2012, and domestic greenhouse gas emissions dropped, but in 2013, natural gas use in generation has declined from 2012 highs. And with respect to methane leakage associated with natural gas production, for a good comparison of estimates see Jeff Tollefson's article in Nature.

Social impacts: For a report on gas attracting chemical companies and manufacturers to the United States, see this American Chemistry Councildocument. For impacts on local economies, Penn State has a number of good sources. And for interesting numbers showing the strain on infrastructure and services created by a booming oil or gas economy, see Williston, North Dakota's Impact Statement.

And if you haven't fallen asleep yet from this post, see also Gregg Macey's recent "Fracking Fatigue" post for great sources, commentary, and research ideas. A post on recent fracturing scholarship and theory would be almost as long as this one--I'll save it for another day.

Unfortunately, I am spending my day with a health issue. By way of a silver lining, that gave me the perfect excuse to catch up on episodes of "Through the Wormhole." All of which has led me to conclude: If you're still a stranger to "Through the Wormhole," you shouldn't be. (And, by the way, the first two seasons are readily available through Netflix and probably a lot of other services.)

So, why make the effort to watch?

(1) If you like environmental law, the chances are good that you have at least a passing interest in science. This is cutting-edge science, presented in a very intelligent format.

(2) Okay, it's mostly physics (and mostly of the quantum/cosmological type) -- but how often do we get to go there?

(4) But none of that would be enough on its own for me to feature the show on this blog. The real reason that I think "Through the Wormhole" is worth the effort for environmental law professors is that the show provides EXCELLENT examples of how to teach complex scientific concepts. Each episode starts with a plain English, common-sense explanation of why what you're about to learn is important. You then get some normal-life analogy to explain what the scientists are doing -- for example, smashing a watch becomes analogous to smashing atoms. But the best part of the show are the visuals it treats you to -- pictures, animations, special effects (aliens morphing into scientists being my favorite so far), and all manner of scientific illustrations and data displays -- while the scientists and Mr. Freeman explain (with excellent senses of humor all around) what the heck the scientists are doing.

I can't say, after watching the episode on subatomic particles, that I can give you a physicist-quality explanation of what a Higgs boson is -- although, in my own defense, the physicists talking about it seemed a little blown away by the concept as well. On the other hand, the episode on the possibility of alien life certainly gave me some new perspectives on water and ecological principles that I plan to incorporate into class, and the discussions of alternate evolutions on Earth (with careful and understandable presentations of the scientific evidence) will have repercussions for how I teach students about deep-sea thermal vent ecologies in Ocean and Coastal Law. I recommend the episode to anyone who teaches biodiversity issues to students.

More importantly, the series as a whole is giving me some great new perspectives on how to blend lecture, video, and graphics into much more effective presentations of hard-core science than I've been doing to date. I think that the examples from the series will be especially instructuve for how I teach the basic science of climate change in Environmental Law and the basic human biochemical reactions to toxins in Toxic Torts. I'm really looking forward to experimenting next year!

World Oceans Day is June 8. It’s a relatively new holiday—the United Nations General Assembly decided in 2008 (United Nations Resolution 63/111, paragraph 171) that every June 8, starting with June 8, 2009, would bear the United Nation’s designation of World Oceans Day.

The purpose in designating World Oceans Day was to call attention to the many problems facing the ocean and to raise global awareness of the many challenges facing both marine ecosystems and the humans that depend upon them. In 2013, the theme for World Oceans Day is “Oceans & People.” The day even has its own 43-second video, care of “One World, One Ocean,” which you can view at http://worldoceansday.org.

The interesting thing about the video, however, is that it shows healthy, beautiful oceans teeming with life. The oceans themselves, however, are more often than not in much worse shape than that.

If you read the New York Times Magazine last week (May 26, 2013), you might have noticed that the cover story was about monk seal murders in Hawai'i. Hawaiian monk seals are among the most endangered marine mammals in the world. Most of their breeding grounds are in the Papahanamokuakea Marine National Monument, a limited-access marine reserve covering the Northwestern Hawaiian Islands. (Notably, the murders occurred in the Main Hawaiian Islands, the islands all of us visit on vacation.) And yet, somebody (or several somebodies) wants the monk seals dead.

From one perspective, the monk seal story is sad and disturbing. From another, however, it is a microcosmic example of a macrocosmic phenomenon: Humans are killing the oceans, largely because we don't think we can.

And law isn't doing a whole lot to stop that process, by the way.

The oceans occupy 139.4 million square miles of the Earth's surface, or about 71% of that visible surface. Of course, they also have significant depth--up to almost 36,000 feet at the Mariana Trench.

And we're changing them. If that doesn't scare you, it should.

We're changing the ocean's biodiversity. Even as the Census of Marine Life revealed in 2010 at least 20,000 new marine species after a decade of world-wide research, scientists are predicting that most fish species will be commercially extinct by 2050. In addition, large individuals of marine species are already down to about 10% of what is "natural."

We're changing the ocean's chemistry. As the concentrations of carbon dioxide in the atmosphere increase, the world's oceans are taking up a lot of the excess--about 40% of the anthropogenic carbon dioxide. Their capacity to do so may be decreasing, but even if it isn't, the oceans can't absorb that much carbon dioixide without impact. Through a complex chemical reaction, the absorbed carbon dioxide becomes, essentially, carbonic acid, a phenomenon that has already measurably reduced the ocean's pH. This "ocean acidification" is already interfering with mariculture in the states of Washington and Maine; it may be altering ocean acoustics; and it could interfere with the ocean's ability to produce oxygen for all of us.

We're changing the ocean's currents. As average atmospheric temperatures increase, they both change wind patterns and increase sea surface temperatures. Both of these alterations, in turn, change ocean currents, and the results have been as diverse as new "dead zones" (hypoxic zones) off several coasts and an ocean "hot spot" off the coast of Tasmania, Australia.

We're changing the ocean's temperatures and cycles. The most obvious example is the Arctic Ocean, which set records for the amount of sea ice melt in 2012 and may be entirely ice-free in the summers as soon as 2016. The Arctic nations (Canada, Russia, Denmark, Norway, and the Unites States) are already anticipating increased human use of the Arctic Ocean, including fishing, offshore drilling, and commercial marine traffic. The implications for the mixing of marine species traditionally considered purely "Pacific" or purely "Atlantic" are potentially mind-boggling.

Against this background, the Obama Administration released the National Ocean Policy Implementation Plan in April 2013, available at http://www.whitehouse.gov//sites/default/files/national_ocean_policy_implementation_plan.pdf. There's a lot in the National Ocean Policy, and there's a lot in the Implementation Plan. However, one thing notably dropped out between the Draft Implementation Plan and the final Implementation Plan: required marine spatial planning. Marine spatial planning is a demonstrated best practice for reconciling, coordinating, and rationalizing the multiple uses that humans make of the marine environment--including the needs of the marine ecosystems themselves. In the United States, marine spatial planning, implemented well, could also help to rationalize the radical fragmentation of authority that undermines comprehensive ocean governance.

This isn't a government taking the need for increased marine resilience seriously. As I've argued in multiple other fora, we need to transform our ocean law and policy.

Over the last year and a half, I contributed a series of essays about my environmental experiences while living in China as a Fulbright Scholar and Visiting Professor at Ocean University of China. A few readers who had missed installments suggested that I create a single post with a roadmap of links to all nine essays. That seemed like a good idea, so with apologies to regular readers for the redundancy, here it is (truly the last of the series):

New Series: Environmental Adventures in China.
“This first post provides some context for my series of through-the-looking-glass observations about what it’s like to plunge into China’s modern industrial revolution as an American environmental law professor....”

CEE #7: Environmental Philosophy - Conservation, Stewardship, and Scarcity. “[Previously], I opened a discussion about how diverging Chinese and American environmental perspectives may be informed by different baselines in our cultural relationships with the natural world. But other differences in underlying environmental philosophy are also important to understand—and as always, some reflect our two nations’ different stages of economic development….”

CEE #9: Post Script: Returning from China to the U.S. “This essay is about the experience of coming back to the United States from China, or perhaps more generally, returning to the developed world from that which is still developing. It mixes deep gratitude for the blessings of the American bounty with queasy culpability over the implications of that bounty for international and intergenerational equity….”

Sustainability is the most influential environmental idea
of the last thirty years. Yet, what sustainability is, what it looks like, is
hard to define. One can read through all 50 pages of “The Future We Want,” the
outcome document from last summer’s Rio+20 conference, and still not know what,
exactly, the term means. I suggest that we can more completely understand
sustainability if we recognize it is not only an idea or a policy goal, but
also a particular kind of environmental story: the pastoral utopia. And we can
understand what sustainability means in the age of climate change if we
recognize that this utopian vision has come into conflict with a competing
story: the environmental apocalypse.

The differences between sustainability and climate
change, utopia and apocalypse, are stark. Sustainability promises that
humanity—operating on scales from global civilization to local enclaves—can
achieve simultaneous economic development, environmental protection, and social
equity, a kind of holistic harmony that requires hard labor but no sacrifice.
Climate change, in contrast, reveals that existing patterns of economic
development have led to massive environmental disruption and potentially gross
inequities that fundamentally threaten the world as we know it. Sustainability
focuses on humanity’s technical ingenuity and imaginative potential. Climate
change focuses on crisis and catastrophe. Sustainability promises we can
thrive. Climate change demands we figure out how we can survive. Sustainability
is a comedy, showing us how despite and because of our foibles we can overcome
serious obstacles to find a new, happy equilibrium. Climate change is an epic
drama, pitching forces of good against evil, creation versus destruction, and
calling on heroes to aid in the fight.

Accepting, as I do, that climate change poses a real
crisis, the question arises: How does sustainability figure into contemporary
environmental discourse? Here, I propose three possible answers:

Sustainability is Bad: Sustainability emerged as an
inclusionary, reform-oriented storyline, promoted by and within the context of
institutional actors like the United Nations Environment Program, the
Organization for Economic Cooperation and Development, the World Bank, the
environmental sciences community, and the highly professionalized environmental
non-government organizations. Serious problems have emerged from these origins.
Most importantly, sustainability has failed (and was designed to fail) to
compel the radical transformation at the core of the countercultural social
movement that invented modern environmental politics. Rather than inspire
changes in the way we live necessary to actually redress the environmental
crisis, the sustainability story brackets big-ticket items like capitalism and consumerism,
reifies existing actors and hierarchies, and affirms basic patterns of social
organization, production, and consumption. In short, it is a deceptive story
that perpetuates existing power dynamics that are in many respects the causes
of climate change.

Sustainability is Mostly Harmless: Sustainability’s
utopian vision has had little impact on actual decision making, yet nonetheless
represents a maturation of environmental discourse, rather than a selling-out
of environmentalist ideals. Perhaps it over-relies on the capacity of markets
and market actors to find solutions to problems made by the demands of markets
and market actors, and perhaps it has become something of a placebo, a green
Band-Aid on a life-threatening wound, but it has the benefit of providing a
powerful ideal and an aspirational goal that, if honestly adhered to and
pursued, could substantially improve our world. Sustainability has always
sought to re-frame humanity’s role, placing the reconciliation of environmental
management and economic growth at the center of our own story. Arguably, there
is sufficient evidence that with enough technological savvy, political
commitment, and hard work a sustainable ecology and economy can coexist.

Sustainability is Good: Sustainability is a vital and
necessary story for achieving real improvements in our overall environmental
and social health. However, it has become subsidiary to the twin challenges of
climate change mitigation and adaptation, and now must complement these less
inspiring storylines—mitigation is irredeemably technocratic, adaptation is
potentially paralyzing—by offering a positive vision for environmental change.
Sustainability’s narrative and rhetorical force should be harnessed not to
promote sustainable development but to motivate us to innovate for greater
energy efficiency, to transition to a renewable energy economy, to reduce and
alter consumption habits, to move roads and fortify infrastructure to account
for sea-level rise, to translocate populations of humans, animals and plants
from places that are no longer habitable, or even existent, and to take on the
myriad other demands of climate change mitigation and adaptation.

Can the conflicting stories of sustainability and climate
change be reconciled, without surrendering something essential about one or the
other? Can we have both comedy and epic drama at the same time? And how do
these stories interact with the law? Neither sustainability law nor climate
change law is, at this point, well-settled; both are in relatively early stages
of development. As legislation, regulation, and litigation in these areas
proceed, it will be worth keeping tabs on the narrative pitch.

From top to bottom, climate change has altered the
Earth’s systems in ways that render impossible a static notion of
sustainability. The idea of fixed natural baselines, contested to begin with,
today is nearly quixotic. The many losses accompanying this state of affairs
include the homelands of small island nations, Native Alaskan villages, and
flood-prone communities throughout the world. They also include untold numbers
of species, large and small. For many communities, the shocks and adjustments
will be ongoing. The challenge for all will be to reconfigure economies and
cultures that have been structured around an anachronism—what used to be the
local climate.

This may seem like a terrible time to cast a critical eye
on the past of the American environmental movement. Instead of looking at its
flaws, we might be drawn to glossing over problems in order to unify support
for strong climate change mitigation and adaptation policies. Yet glossing over
might prove counterproductive. The inescapably damaged state of the world we
are trying to preserve provides an opportunity to escape from narratives that
have divided communities over environmental policies. Those narratives include
saving the environment from people and preserving pristine places from
contamination.

Let’s explore those narratives in two places. Aspen,
Colorado is a former mining town reborn as a luxury ski resort. Efforts to
preserve the wilderness and other natural resources of the surrounding
mountains have coincided with pricing Aspen out of any reasonable housing
market and creating a distant commuter class of service workers, composed
mostly of Latino immigrants. The two phenomena do not have to coincide. The
conversion from a boom-and-bust extractive industry economy to an amenity and
service-based economy can be managed in ways that produce equitable
distributions of environmental and social benefits. But often it is not. The
path to easy money for developers is the path of environmental privilege.
Wealthy people come for real estate or experiences near beautiful and sparsely
populated public lands, and then structure a service economy around the
protection of their privileges. (To be clear, I do not mean to say that
individual wealthy people do this intentionally; the logic of this type of
development is naturalized in a way that makes it invisible to many
well-intentioned people.) This often includes, as it has in Aspen,
externalizing a range of costs and impacts to outlying communities. Service
workers must commute by car from distant places. The towns where they live,
which have lower tax bases than Aspen, provide the schools and other services
to Aspen’s working class. In short, Aspen is a place of environmental and class
extremism, where the very wealthy enjoy the best that the Rocky Mountains can
offer in terms of scenery and access to wilderness and other outdoor activities,
and low-income workers live in distant communities, drive hours to and from
their jobs, and barely have time to notice that the supposedly transformative
experience of pristine nature surrounds them.

Black Mesa, Arizona is a high desert plateau, most of
which is on the Navajo Nation but portions of which comprise the Hopi Tribe’s
land. The Navajo and Hopi people of Black Mesa are among the more traditional
Native communities in the country in terms of maintaining their ancestral lands
as well as the religions and cultures tied to those places. The community is
not a monolith, but it is fair to say that most of the Navajo and Hopi people
who live there have strong interests in ensuring that their water (from
underground pristine aquifers), their land, and their air can sustain many
future generations who will perpetuate Navajo and Hopi life ways. The threats
to their ability to ensure that future come from two main sources: the strip mining of coal on Black Mesa (and
the accompanying pumping of ground water from the aquifers to mine and
transport the coal), and the pollution from the several coal fired power plants
that surround the Navajo Nation, including the Navajo Generating Station which
receives all of its coal from Black Mesa. None of the electricity generated at
the Navajo Generating Station supplies power to people on the Navajo or Hopi
reservations. Instead, the power is used by the Salt River Project, Los Angeles
Water & Power, Nevada Energy, Arizona Public Service Co., Tucson Electric Power,
and the U.S. Bureau of Reclamation. The beneficiaries of coal mining, aquifer
pumping, and emissions from the coal fired power plant are therefore
corporations and people in the distant cities of Los Angeles, Las Vegas,
Phoenix, and Tucson. The recipients of all of the environmental burdens are the
Navajo and Hopi people, whose land, resources, and water serve as raw material
to develop these far away places.

Contemporary environmental laws, in place since the early
1970s, have done tremendous good, but have done little to curb the extreme
inequities in the distribution of environmental burdens and benefits
exemplified in these two very different places. In Aspen, the narrative of
keeping people out of pristine places is at play. On Black Mesa, the narrative
at work is one that separates the plight of subordinated people from the
structural forces that harm our environment. The build-up of Los Angeles and
Phoenix surely seemed foregone, inevitable, and right to those involved in it.
But what thought was given to the Native communities on whose backs those
cities were built? Their lands were seen as nothing but the disposable raw
material from which to build something better.

As we move forward, post climate change, with only a
murky comprehension of how best to preserve remnants of the faultless non-human
world, perhaps we can reconsider how to weave human communities and their just
demands for equitable treatment into the picture. Otherwise, we may lean
towards sustaining only non-human nature, and that will inevitably also benefit
only certain classes and strata of humanity. We might unwittingly be sustaining
a very hierarchical and increasingly rigid system of doling out environmental
privileges and harms. If this is a moment of reconsideration, my vote is to
construct a competing narrative of environmentalism, one that has a vision of
vibrant, equitable, just and diverse communities of humans and non-humans as
its end.

Climate change requires that we replace goals of
sustainability with something else, at least for any policy goal more concrete
and specific than leaving a functional planet to the next generations.
Sustainability is by definition the ability to sustain something: the verb
needs an object, and the goal of sustainability needs a particular focus or
foci—an ecosystem, a socio-ecological system, extant biological diversity,
economic growth, development, human health—but something. To talk about
sustainability in the abstract is to philosophize, not to pursue meaningful
policies and laws.

Climate change, however, is a game-changer. And, from a
sustainability perspective (among others), we have absolutely no idea how to
play this new game, even though we (accidentally) invented it.

But before we go too far down that road, let’s start with
some basics. First, all human well-being—oxygen to breathe, food to eat,
habitable environments, fuel, health, economic and cultural
development—ultimately depends on the physical, chemical, and biological
processes proceeding at multiple physical and temporal scales throughout Earth,
including its atmosphere and oceans. Second, climate change is already changing
most of the important components of those processes: the temperature of the
atmosphere, of regions of the oceans, of land, and of various freshwater
bodies; atmospheric and oceanic currents; the chemical composition of the
atmosphere; the chemical composition of regions of the oceans; the relative
humidity in various regions; precipitation patterns throughout the world; the
habitability of particular ecosystems by particular species; natural checks on
pest species through temperature and other seasonal changes; and the
productivity of various landscapes. Third, these processes are proceeding, and interact
with each other, in complex and unpredictable ways, stymieing (or at least
limiting) human ability to predict future states of being. Fourth, even if all
greenhouse gas emissions ended tomorrow (which will not be the case), carbon
dioxide in particular takes a long time to cycle back out of the atmosphere. As
a result, humans are stuck with change-inducing carbon dioxide levels in the
atmosphere for a while—almost certainly at least a couple of centuries, and
probably much longer, especially if climate change mitigation efforts remain
half-hearted.

As a result, the bases of human life, health, society,
culture, and economics are all changing and almost certainly will continue to
change—again, in complex and often unpredictable ways—for the foreseeable (and
unforeseeable) future. Climate-change impacts will, almost certainly, be a fact
of human existence for longer into the future than the United States has been a
country into the past; indeed, under current scientific predictions, humans
will likely be dealing with climate change for longer than they’ve already been
dealing with the European colonization of the New Worlds.

So, back to the main point: When the only constant in
life is continual socio-ecological change, sustainability is a practically
meaningless concept. You can’t sustain an ecosystem if the fundamental features
of that ecosystem are constantly changing. You can’t sustain a socio-ecological
system if its foundations are radically different than they were 20 years ago
and will be radically different again 20 years from now. You can’t sustain a
particular economy if the bases of that economy are disappearing. You can’t
sustain cultural integrity if the society’s members are rapidly becoming
climate-change refugees, or if the traditional ecological components of that
culture have transformed into something else.

And that’s all before we fully consider the darkest of
climate change’s many dark sides. At least three of the four horsemen of the
Apocalypse—War, Famine, and Death—are likely to be riding tall and strong
through the climate-change era, and we shouldn’t discount the fourth, even if
you name him Conquest rather than Pestilence (Pestilence, of course, will be
present in force). All of these, moreover, are likely to be joined by a younger
sibling, Thirst, who may just turn out to be the most insidious of the lot. In
places where these horsemen ride in force, it’s not hard to conclude that
anything approaching sustainability will be a distant dream; instead, avoiding
absolute chaos and permanent destruction will be the goal de jour.

This is an admittedly dark vision of what climate change
means for at least some parts of the world. That does not, however, mean that
it’s an inaccurate vision. Moreover, even in the lucky places and for the lucky
people destined to be climate-change winners, changing conditions will be a
continuous reality—indeed, for some, it will be precisely the fact of changing
conditions that makes them climate-change winners. In those places,
sustainability will be both impossible and undesirable.

Finally, it’s important to remember that we were never
very good at sustainability to begin with. For example, since the world
officially adopted sustainable development as a goal at the 1992 United Nations
Conference on Environment and Development (the Rio de Janeiro Earth Summit),
human consumption of resources has only increased, with no signs of stopping.

So, what should we pursue, if not sustainability?
Adaptability, for one—that is, the ability to change (foods, jobs, health
regimes, industries, etc.) in response to, and preferably in tandem with,
climate-change impacts. Nostalgic conservatism will be, sometimes literally, a
dead end. Resilience, for two—that is, the ability to absorb change without
losing overall functionality, such as food production, water supply and
sanitation, law and order, individual and cultural self-expression. Moreover,
while resilience theory grew primarily out of ecological science, the concept
needs to apply to other socio-ecological system components besides the
environment, from economic resilience at the macro scale to social and cultural
resilience at the more local scale to psychological resilience at the
individual scale. As Charles Darwin emphasized, “It’s not the strongest of the
species that survives, nor the most intelligent, but the one most responsive to
change.”

Much has been said about the elusive nature of the term,
“sustainability.” Some argue that the term is rudderless in the absence of some
acceptable matrix for measuring success. This claim makes sense where we demand
accountability in governmental decision-making. Some argue the term is
inconsistent in different contexts or at different scales. This claim
identifies inconsistencies in all sustainability programs that operate at or
are justified in different scales (as they all do and all are). Others continue
to believe the term invokes a liberal political agenda. Although the arguments
supporting this claim are less apparent, there certainly has been an
association between liberal democratic politics and the types of social and
economic changes suggested by sustainability.

My sense is that most of the above discussions are
irrelevant. Sustainability implies (at the very least) a more rigorous pursuit
of equity as a matter of governance, a more honest incorporation of economics
into environmental quality considerations, and a more effective regulation of
the interaction between the natural and built environments. This basic
definition is more functional than its critics allow, but only if we approach
the application of the sustainability framework with a little light-heartedness
on our demands for substance and certainty. Indeed, we might consider whether
sustainability is (or has ever been) so substance-driven (and in the meantime,
we might reconsider whether we have any actual needs for such certainty). We
might productively think of sustainability as a lesson in process. For
instance, if we define “governance” as protection against systemic and
catastrophic risks, sustainable governance involves the process of identifying
known and unknown risks to our social, economic, and environmental dependencies
and in formulating solutions to address each of these three legs of
sustainability. Process here involves pluralism that is not necessarily
democratic, precaution that is not necessarily presumptive, and flexibility
that is not necessarily unprincipled. Another way of articulating the “process”
point of sustainability is that we are all pragmatists when it comes to
sustainable governance.

The present struggle over climate circumstances presents
an illustration of this type of process-oriented thinking. On the one hand,
climate change presents a context in which sustainability is unquestionably
challenged. Climate change has dominated politics, science, conservation
planning, and even education. Of course, it is easy to see that climate change
provides talking points, models, and mandates in each of these areas because of
its reluctance to conform to past models of equity, economics, and environment
(not to mention morality, metaphysics, and ontology). It is also easy to recognize that the depth
and range of climate-change impacts will uproot human livelihood and well-being
in unimaginable ways. Water and food scarcity, loss of soil productivity and
biodiversity, and uncontrollable spread of disease are common climate-change
consequences. In the context of runaway climate change, it is arguable that the
long-term, future-generation vision represented by sustainability is
impractical to pursue and impossible to implement. Shifting baselines resulting
from climate shifts challenge our present ability to match future needs with
future environmental circumstances, thereby making it difficult to chart a
course today. Island cultures will be lost to rising seas, and the Stern Report
predicts the largest market failure we have ever seen. In this context, the
salient but complex question on the usefulness of sustainability might be,
“what are we trying to sustain?”

Yet applying sustainability to the challenges of climate
change adds a process for understanding the character of the challenge without
being subsumed by the breadth or rhetorical commitments of any particular
principle. Sustainability is a framework for thinking and is not illustrated by
facts so much as by goals. Sustainability demands that each decision reflect
good governance on economic, environmental, and equity—regardless of whether we
face the threats of climate change or the circumstances of climate
stabilization. In the meantime, sustainability helps us understand the dynamics
of human interactions with nature, human dependencies on ecosystem services,
and social and cultural adaptations to environmental circumstances.
Sustainability provides a framework for understanding why funding choices,
human capital, cultural bias, and economic tensions become important in the
context of particular challenges—like climate change—and a process for making
good governance decisions.

On September 16, 2012, the National Ice and Snow Center
announced a record-breaking loss of Arctic sea ice. That day also happened to
be my 47th birthday. In my relatively short life, the Arctic has changed beyond
imagination—and more change is coming. We have a growing litany of climate
ills—wildfires, heat-waves, droughts, floods—each perhaps not directly
attributable to climate change, but collectively harbingers of the emerging
Anthropocene. Yet, rather than prompting any urgent response, each new climate
disaster leaves us, in the words of Bill McKibben, “in the same position we’ve
been in for a quarter-century: scientific warning followed by political
inaction.” The explanations for our impotence in the face of overwhelming
evidence that human activities are destroying the very fabric of life on Earth
tend to focus on economics—too many powerful actors are making too much money
from business as usual and therefore use their power to prevent change.

Without really challenging this basic outline, this essay
suggests that this power-based narrative is incomplete. It leaves out the role
that law and legal systems play in obscuring this power dynamic. The system by
which we structure our decisions in a democratic society—the rule of law
itself—actually prevents us from perceiving or confronting this more
fundamental power conflict.

It is all too easy to dismiss sustainability as a
contentless marketing label lost in a fog of meaningless verbiage. The
marketplace of “sustainable” practices, technologies, and gadgets contains far
too many gimmicks intended to maintain the cherished illusion that
sustainability will just somehow “happen.”
As a marketing ploy, sustainability encapsulates our fantasy a sudden
technological breakthrough that will allow 7 billion, or 10 billion humans to
live the typical American consumption-based lifestyle, only without destroying
the Earth in the process. This belief that an external, game-changing solution
will save the day is a dangerous fiction. There can be no sustainability when
we start with the existing economy and then try to graft change onto its
margins. If we needed proof that this approach has failed, is failing and will
continue to fail, we need look no further than the rate of melting sea
ice—which continues to accelerate despite decades of high-level international
climate negotiations.

If we heed climate change’s call, we might begin to
rethink sustainability—to take seriously its mandate to maintain, support, and
hold. If so, sustainability can offer us a set of organizing principles by
which to restructure the core, yet largely invisible, functions of production
and transportation that precede the consumption on which so much current
sustainability rhetoric focuses. To change these less visible aspects of
society, we need to mobilize the power of the law as a framing institution. We
can, if we choose, arrange our infrastructure and define our markets to cause
sustainable outcomes. Embracing sustainability as our primary framing narrative
would create space for new thinking about the ways to balance the power of the
state, the market, and civil society.

Getting from here to there may be daunting, and
sustainability may seem a slender reed on which to pin our hopes. Yet, the
fundamental choices about balance that are sustainability’s essential feature
have the capacity to offer us a new vision of the basic social contract—one
that could transform human life on planet Earth. To make that happen, we do not
need perfect conceptual clarity about sustainability—core indeterminacy is,
after all, a definitional part of post-modern existence. Instead, we need to
embrace sustainability’s potential for multiple, independent generation of
ideas. A range of social, cultural, and political forces seek to frame
sustainability through multiple disciplinary lenses. Each frame offers a
different conception of the problem and its component parts. From this base,
each approach proposes an alternative array of solutions along with the tools
by which those solutions might be implemented.

This contest between alternative frames for
sustainability has both declarative and constitutive significance. Framing does
more than shape how we analyze the sustainability of any particular
choice—which variables must be assessed, weighted, and evaluated; and which can
safely be ignored. Framing also shapes the process by which we define what
constitutes a choice (or a variable) in the first place. Once we acknowledge
that framing matters—that disciplines have blind spots and path dependencies—it
becomes clear that the very articulation of sustainability is itself a
consequence of inevitable disciplinary limitations.

This insight is as liberating as it is daunting. It means
that by posing our questions differently we might begin the process of
uncovering hidden possibilities, thereby paving the way for a new understanding
of the sustainability challenge and opening space for new responses. Perhaps a
good beginning would be to shift from a conception of “the environment” to
“Mother Earth”—which might help us rediscover a deeper, more profound
relationship with the world we are rapidly recreating than the
consumption-focused conception that currently predominates.

The future of our children, our species, and our planet
hinges in the balance. The window for change is narrow—and closing. Unless we
transition away from our consumptive, single-use society into a sustainable
one, we will doom our children (as well as our future selves) to life in an
increasingly impoverished, depleted, and inhospitable planet.

Sustainable development traditionally
demands that we meet future generations’ needs without sacrificing the current
generation’s needs. Since climate disruption already promises to compromise
both current and future generations’ needs, climate disruption demands a
refinement of our understanding of sustainable development. I would suggest
that sustainable development demands approximating this ideal of meeting
current and future generations’ needs as best we can, by minimizing damage to
our attempt to meet the basic needs of both future and current generations.
Concretely, this requires a transition to a zero-fossil-fuel economy as quickly
as we can, while generating (probably through a carbon tax or sale of
allowances) sufficient revenue to fund adaptation both here and in developing
countries that will bear the most serious consequences. A fossil-fuel economy
is not sustainable, because the resources it relies upon are not renewable and
because carbon dioxide harms this generation and threatens to destroy future
generations. Herman Daly’s definition of sustainability as demanding harvesting
of renewable resources that do not exceed the rates at which these resources
replace themselves probably needs revision in light of climate disruption. For
resources that we need as carbon sinks or that are already dangerously
depleted, we may need to embrace growth in the resource (when possible), rather
than a steady state.

In the United States, the political
constraints on moving toward zero fossil fuels appear so formidable that it’s
hard to think about a key question this leads to: What does sustainability teach us about
managing the costs of a transition to zero fossil fuels? But it’s a
philosophically important question and will become practically important even
in this country if the politics change significantly. First, the concept of
sustainable development rules out delaying a transition to zero fossil fuels
because of undifferentiated concerns about costs. For that reason, cost-benefit
analysis does not help much in analyzing a policy’s sustainability.
Sustainability concerns itself with meeting people’s basic needs, however we define that, and embraces sustaining quite
significant decreases in surplus wealth if necessary to meet the basic needs of
future generations (or this one). At the same time, sustainable development
requires some attention to easing transitional impacts on low-income people and
to ameliorating impacts associated with dislocating workers in the fossil-fuel
industry, even if the green economy generates more jobs than we lose.

My own work has been primarily focused on
the problem of operationalizing sustainability (or something like it) when
crafting pollution control policies and other policies affecting development
(e.g. financial regulation).
Sustainability demands changes in the focus, goals, and methods we bring
to bear on almost all areas of law. It requires a focus on the shape of change
over time, rather than near term costs and benefits. It suggests a goal of
avoiding systemic risk, not achieving efficiency at the margin. And it invites
an analysis of economic incentives that aims at efficacy in avoiding systemic
risk, by asking how government actions will influence the actions of boundedly
rational institutions and individuals responding to incomplete
information.

The principal advantage of this
elaboration involves its ability to directly address the pathologies emanating
from neoclassical law and economics and to make the sustainability concept
meaningful in other areas of law that influence development. One might argue
that the deregulation of the financial industry advanced sustainable
development, as it precipitated a rapid decline in carbon emissions as the
economy collapsed. I would reject that conclusion on the grounds that it harms
our efforts to meet current basic needs. We need to maintain basic social as
well as environmental systems even as we drastically change the economy’s
material basis and financial structure, as the goal of avoiding systemic risks
implies. The economic dynamic concept described above (and elaborated in more
detail in The
Economic Dynamics of Law
(Cambridge University Press 2012)) captures the change in thinking about how
government operates that we will need to move us toward sustainability in the
era of climate disruption.

Sustainability can become more than the sum of its parts
by transcending its literal meaning to become the synergistic trampoline for
ethical, economic, and environmental resilience and coherence. From
sustainability of forests and fish stocks
to sustainability of future generations and a call for fusion of ethical, economic, and
environmental understandings, complex systems are increasingly challenging
humanity to adapt both language and governance. It makes little sense to speak
of literal sustainable extraction of ancient water from aquifers nor of fossil
fuels. The diplomacy that emerged from Rio in 1992 sought to bind a mindfulness
of ecological carrying capacity with equitable use of resources to alleviate
poverty. To date, both environmental and development communities find
sustainable development lacking. Yet, time is running out to rename policy
approaches without genuine follow-through in the form of environmental and
human security. The international community has the capacity to embrace
sustainability as an overarching framework for coordinated ethical, economic,
and environmental decision-making. It is not the only means by which to proceed
but represents one plausible response to increasingly disconnected fields that
impact one another. A sensible first step down this coherence path is to
recognize good governance as crucial to achieving sustainability and climate
cooperation.

How do we calibrate efforts to build a sustainability arc
that can enhance human and environmental integrity? High-level forums for
inclusive meaningful dialog can enhance network creation and expansion into new
public-private, local-regional-international, and a myriad of interdisciplinary
patterns of cooperation. Complex adaptive systems and good governance
principles can inform decision-making that results in rule of law enhancing
predictable, efficient, and fair outcomes. The rule of law depends upon
accessible, independent, and efficient decision-making. None of these processes
is rapid or inexpensive. Yet, they can be rightly called investments and folded
into respected economic climate-energy-water recommendations when
decision-makers use sensibly long-term time horizons for efficiency analysis
and recognize the value of equity, ecosystems, and other important yet not
easily measured public and private goods.

As Dan Taylor has note, “the answer still is Gandhi’s. We
know more clearly the processes for how to move toward his vision that
improving people’s wellbeing is grounded in their mobilization, and that vision
can be summed up as: begin simply, be true to process, the means are the ends,
grow capacity in the partnership.” Sharing best practices from human rights and
environmental law may provide a synergistic catalyst for ethics, economic, and
environmental coherence.

International human rights law offers a robust justice
framework with which to address climate change. Applying human rights
thresholds to climate change may catalyze sustainability cooperation. Decisions
informed by an understanding of climate justice can bring together dialogue
from development, human rights, environment, trade, and business communities.
Energy-food-climate security can be discussed as the interwoven crisis that
threatens humanity rather than as unrelated dilemmas. What appear to be
fragmented trade, environment, and human rights regimes can be sustainability
framework building blocks.

Challenges to transitioning to greater efficiency and
renewable energy use include the degree to which fossil fuel is embedded in the
economy and the degree to which pricing carbon is a prerequisite for
substantial private sector investment in environmentally sound innovation and
participation in diffusion. A good starting point would be for trade and
environment regimes to set clear criteria for what constitutes environmentally
sound innovation based upon ongoing life cycle analysis that is mindful of
science and equity. Network coordination can facilitate breakthroughs in trade
and environment relations and build upon best practices.

With a background in economics, human rights, and
environmental law, I haveparticipated in the drafting process for the UNFCCC,
Agenda 21, and the Rio Declaration. More recently, I was a member of UN, IGO,
and NGO delegations to the climate negotiations. It is my understanding that
substantive life cycle analysis, procedural capacity building, and cultural sensitivity
remain open issues. Bringing together a wide range of perspectives in a
catalytic manner can converge insights that resonate. A collage of narratives
from ecology, ethics, economics, and environmental law may be able to galvanize
collective action—with or without a single shared sustainability vision.

Individuals have gained subject status at international
law, and civil society voices are not only being heard but responded to. The
quiet desperation of humanity that Thoreau spoke of has become a powerful
force—potentially capable of incentivizing climate coordination. Irrespective
of the rhetoric with which we converse, we need to figure out how to come
together as a global community that feels its collective loss enough to
cooperate (both quickly and effectively) to achieve a sustainability arc that
enhances ethical, economic, and environmental cooperation.

Most contemporary definitions of sustainability
incorporate key principles from a 1987 report (commonly referred to as the
Brundtland Report) by the World Commission on Environment and Development. In
addition to the notion that sustainability necessarily involves a commitment to
intergenerational equity, the Brundtland Report emphasizes the interdependence
of environmental quality, social equity, and economic policies. International
documents since the Brundtland Report have also linked income inequality and
environmental degradation. For example, economic policies designed to mitigate
poverty by increasing the production of goods may result in the overuse of
natural resources, leading to an eventual decline in both natural resources and
income levels. Today, examples of this relationship appear in the
climate-change context. For instance, as the climate changes, some populations
are forced to use ecologically fragile land for agricultural purposes. The
decline in land quality further contributes to income inequality, and the
agricultural practices further degrade the land.

This link between poverty and the environment may
sometimes be empirically accurate, but it may not be true in all cases. For
example, it may be the case that people with fewer economic resources tend to
conserve the resources they have; they may be better at using less and
recycling the waste they generate.

If, however, we assume that this link is empirically true
often enough—or that environmental policies simply should incorporate concerns
of social equity—then the next question is how should governments at every
level understand the relationship between income inequality and the environment
for purposes of policy making. Even if we assume that the physical
sustainability of the environment is a condition for social equity (or vice
versa), we still need to define what social equity is in order to design
policies that further it. In doing so, we necessarily identify who we think the
winners and losers of environmental policies should be.

So, what exactly is social equity and what does it
require in the context of environmental policy making? In the United States,
the environmental justice movement has long stressed that social equity
requires the fair distribution of environmental benefits and burdens, an
approach now reflected in U.S. law and policy. The idea that social equity
necessarily involves the distribution of something is relatively
straightforward, but the idea of fairness is less clear. How, for example, can
environmental policies fairly distribute carbon emissions worldwide?

Resolution of this question requires a distributive rule
that reflects a normative principle of equality. Theories of social justice
supply various options. In the international context, policy makers could
decide to allocate emissions equally, granting governments a per capita share.
Or, policy-makers could adopt a prioritarian rule that would grant the least
advantaged societies a greater share than they would receive on a per capita
basis to ensure that the economic losses incurred by these societies are
relatively less than those incurred by more well-off societies. Another
possibility is to ensure that all societies are guaranteed a level of emissions
that will continue to meet their basic needs however defined.

Deciding what social equity requires raises other
questions as well. Some questions help identify how far considerations of
equity extend. For example, should policy-makers consider the effects of
climate change on both humans and nonhuman animals? Should they consider the
effects on those outside their political borders? What about the consequences
for future generations? Other questions involve the nature of the
decision-making process. Should policy-makers attempt to create a fair process
for environmental decision-making or simply attempt to reach fair results? In
other words, do we evaluate the fairness of a particular decision by looking at
how it was made (e.g., by evaluating levels of citizen participation and
governmental transparency) or by assessing the consequences of the policy
(e.g., by evaluating actual impacts to the environment and income inequality)?

Current definitions of sustainability address a few of
these questions. As noted above, definitions of sustainability require
consideration of a policy’s effect on future generations. In emphasizing the
need to reduce poverty while protecting the environment, these definitions also
appear to be consequentialist, or result-oriented—although proponents of
environmental justice certainly recognize the need to incorporate democratic
values into decision-making processes. The apparent resolution of these
questions highlights an important tension in environmental policy-making,
particularly in democratic societies. Liberal theories of justice often
emphasize the importance of fair decision-making processes, rather than fair
results, and resist adopting a particular conception of the good. On the other
hand, definitions of sustainability contemplate results that are fair both in
the present and in the future, and they appear to adopt a vision of the good
that connects human welfare to environmental conditions.

Questions of social justice do not have easy answers, but
we cannot ignore them. The international community apparently accepts the idea
that social equity should be part of environmental decision-making. To make
this a reality, we need to focus on how this can and should be done.

Climate change does not change our view of sustainability; it heightens the importance of sustainability thinking. The concept of sustainability is inextricably linked with ideas of planning and management. From an ecological standpoint, sustainability guides resource management—helping ensure that current use of a resource will not deplete the resource and that future generations (or even just future versions of us) will be able to use the resource as well.

Take the simple example of sustainable timber management. If we cut down all the trees today, we won’t have any trees available for timber next year. If we harvest timber in a way that leaves the soil vulnerable, we’ll make it even harder to have trees in the future. Therefore, when deciding how to manage the forest, we make a plan that involves cutting down only some of the trees. We look at water, soils, and nutrients to determine what actions will protect our desire to cut down more trees in the future. We consult scientists and economists and take ecological and social considerations into account. And then we realize that our simple sustainable forest example is not really so simple. To meet our goal of sustainable timber harvest, we must also adopt an approach that considers many factors and is open to change and adaptation as inputs change or our information about (understanding of) the system grows.

Sustainable timber management offers a glimpse into the complexity of thinking broadly about sustainability, yet climate change makes sustainability analysis even harder. Keeping with our forest example, climate science tells us that we are likely to see even greater changes in water regimes, nutrient availability, and species richness. Things are going to get harder because our earlier predictions about the future were wrong. Things are going to get harder because our current understanding of the natural world is still wrong. Things are going to get harder because all of our natural and social systems will be facing increased stress.

Sustainability thinking necessarily involves both (1) thinking about the future and (2) taking an adaptive approach. Sustainability as a concept and approach means considering the future health of ecosystems and seeking to maintain functioning systems. If we seek to sustain anything, we must establish some projections of what the future conditions will be. We need to determine what prescriptions are needed. Climate science (along with many other fields) tells us that the world is a changing place and that the future is not always easy to determine.

Adaptability is what makes sustainability effective in an era of climate change. Mechanisms like adaptive management enable us to revisit policies and programs as circumstances change. A call for embedding ideas of adaptive management in our environmental laws is not new. Yet, we have only been minimally successful on that front. Much of law, especially laws regarding environmental protection and property, are static. Our methods of land conservation, for example, have focused on park-like protection where we set land aside for public ownership or protect it with conservation easements. We set static rules regarding the land, often adopting a hands-off approach and hope that will serve future needs. This means we sometimes get part one of the equation right—we think about the future. But we leave off part two. We don’t create mechanisms to reexamine our rules or management strategies. In our changing world, we are too focused on fixed points.

Breaking free from current practices and norms is not an easy task. the ecological concept of resiliency, however, may help us approach environmental protection from a new direction. Resilience is the capacity of an ecosystem to respond to perturbation or change. High resiliency is a function of both an ability to resist impacts and to recover quickly from disturbances. Importantly, a resilient system is not one that continues to look the same throughout the ages but one that responds and reorganizes while retaining function. Environmental protection should not be an effort to retain ecosystems and amenities in their current state but should promote resiliency. Healthy functioning systems are not wedded to a specific external appearance. Working towards resiliency means assessing what the thresholds of a system are and how close we are to those thresholds. Thinking of adaptation in resiliency terms goes beyond assessing whether humans will be able to respond to the coming climatic changes and considers our capacity to manage resistance and influence resilience. This shift towards resiliency thinking is a fundamental component in updating our principles of sustainability in an era of climate change.

The global urban footprint will expand from two to five
times what it is today by 2050. This is in part due to the estimated population
growth of 2.4 billion between now and 2050, most of which will occur in urban
areas. Urban areas also have a persistently declining density in both
developed- and developing-world cities. As a result, an extensive new
infrastructure will be built in the twenty-first century that will exceed the
size and scale of all previous city building.
The dismal fact looms: our cities
are exploding, inevitably.

Making the inevitably exploding city of the 21st century
sustainable should be the cornerstone to long-term conservation and
adaptability efforts to address climate change. It only makes sense that an
environmental problem derived from human development revisit the source of the
problem. Consider: transportation is a major source of greenhouse gas
emissions, as are the construction and operation of residential and commercial
buildings; land-use change resulting from city growth will also increase
greenhouse gas emissions, through acts such as deforestation; and increased
building stock will drive greater electricity use. Sustainable solutions to
reducing greenhouse gas emissions in exploding cities will require equal parts
pragmatic policy, legal tools, and a new narrative of development. Here is what
this approach might look like:

Policy. To accept the exploding city as inevitable does
not mean we stop trying to improve city form and increase density, but it does
mean we move beyond efforts simply to contain growth of the urban footprint.
For instance, California’s approach to the transportation sector has been a
“three-legged stool” of greenhouse gas emissions standards for new model
vehicles; low-carbon fuel standards; and land-use policies intended to reduce
vehicle miles traveled. As a second example, building standards must be changed
to achieve two ends: reduce climate emissions from the operation of buildings
and adapt to a changing climate. To wit, Amory Lovins once famously grew a banana
tree in a well-insulated hothouse in the middle of a Colorado winter with
little heating. Similarly, we can substantially reduce buildings’ resource
demands within the scope of existing technology: we must deploy it in this
generation of buildings that will redefine human habitation.

Law. Cities must be places people want to live. Great
places are not built as a monolith but by empowering local communities in
megapolitan regions to build communities in their images. In developed
countries, this means advancing sub-local government structures, which I have
called “legal neighborhoods” to service sub-local needs, while still using
local government to address regional issues. In developing countries, it means
advancing concepts such as Brazil’s City Statute, which, broadly speaking,
seeks to bring its slum areas, or favelas, into civil society; seeks to bring
both social and environmental justice to those communities; and allows those
communities to participate in the fruits of cities’ developments. Densely-settled
environments must become more than merely tolerable and more than a place for
economic opportunity: they must become the places people would choose to live
over all other choices. The legal and political tools must make this choice
evident.

Narrative. Sustainability’s narrative must move
beyond its famous definition from the Brundtland Commission as “meet[ing] the
needs of the present without compromising the ability of future generations to
meet their own needs.” In the context of the exploding city, I propose a
“dwelling ethic.” A dwelling ethic, as I see it, incorporates the “land ethic”
approach of Aldo Leopold, which he stated “enlarges the boundaries of the
community to include soils, waters, plants, and animals, or collectively: the
land,” with the teachings of Martin Heidegger that construction must be for
“dwelling,” or long-term inhabitance, not just “building,” a consumerist
approach to the physical environment. To
achieve Leopold’s vision for the land in an age of exploding cities, we must
decide to dwell, as Heidegger would say, as if we intended to stay put—in this
house, on this planet—for some time to come. Such an ethic is of particular
importance in this, humanity’s most peripatetic age.

Sustainability is an increasingly important concept in
environmental and climate-change law. To the extent sustainability means that
people should reduce their environmental impacts and shrink their carbon
footprints, it seems that the increased focus on sustainability offers
significant promise. But it is unclear that sustainability has that meaning;
indeed, the term sustainability has become so ubiquitous and amorphous that it
seems to have no common meaning. That might not matter very much when the idea
of sustainability is used to promote gratuitous or individual acts of
environmental stewardship. However, successful climate-change mitigation will
require greenhouse gas emissions and atmospheric carbon dioxide concentrations
to reach specific numeric levels. If governments replace quantifiable emissions
reduction targets with ambiguous sustainability goals, this could undermine
long-term efforts to reduce greenhouse gas emissions and mitigate climate
change. Therefore, in the context of climate change, it is critical that
governments make their sustainability programs count by measuring the benefits
of their sustainability measures.

Over the past several years, a number of cities around
the country have adopted climate action plans to reduce municipal greenhouse
gas emissions. Many of these climate action plans focus on similar sectoral
emissions-reduction strategies, such as reducing vehicle miles traveled by
steering people away from single-passenger car trips; reducing waste-related
emissions by encouraging composting and recycling; encouraging energy
efficiency and localized renewable energy production; and encouraging other
mitigation strategies such as tree planting, urban gardening, and other
activities to reduce urban heat (and thereby reduce the need for air
conditioning). Although these strategies may have significant potential to
reduce urban greenhouse gas emissions and mitigate climate change, cities often
fail to quantify the anticipated reductions the strategies will produce. Even
where cities can point to emissions reductions they have achieved—for example,
Portland, Oregon, has lowered its emissions to 1990 levels after pursuing
elements of its climate action plan—they typically do not link emissions
reductions to specific measures. Instead, cities have begun to promote the
general concept of sustainability rather than develop specific strategies to
meet the numeric metrics in their climate action plans.

Why should this matter? After all, if a city can show
that it is simultaneously implementing a climate action plan, becoming more
“sustainable,” and reducing greenhouse gas emissions, it would seem that
sustainability efforts deserve praise. The problem, though, is that climate-change
mitigation ultimately relies on numbers: to avoid temperature increases above
2°C, scientists estimate that global carbon dioxide concentrations must fall
back to 350 parts per million (which may actually be too high), which requires
quantifiable emissions reductions measured in tons of carbon dioxide
equivalent. If cities are serious about mitigating climate change, they need to
link their plans to quantifiable targets. Sustainability should not be exalted
at the expense of governmental accountability.

That does not mean that sustainability (whatever it may
mean) should not play a role in climate-change mitigation. Local climate action
plans may help promote and reinforce behavioral norms necessary for societal
changes that comprehensive climate-change mitigation demands. City leaders in
Portland, Oregon, and New York City have tapped into the idea of sustainability
to garner support for those cities’ climate plans, to encourage participation
in the cities’ sectoral mitigation efforts, and to change the culture in ways
that could lead to deeper emissions cuts over the longer term. The vague
concept of sustainability seems to promote participation and buy-in from
residents in those cities, because it provides city residents positive
reinforcement as they work to improve their communities.

This concept of sustainability—that it serves to promote
good will and emotional benefits—may seem weak. But research has shown in
various contexts that positive reinforcement and messaging may do more to
promote behavioral change than scolding and shaming do. For example, voter
turnout efforts that emphasize the civic benefits and positive aspects of
voting have a greater impact than efforts designed to play on voters’ fears and
anger, contrary to some social scientists’ expectations. If government leaders
use the concept of sustainability as a positive, upbeat strategy to enlist
urban residents in climate-change mitigation efforts, this could help change
societal norms. Changing norms, in turn, could allow city leaders to take more
aggressive measures to achieve their quantifiable targets.

To make sustainability count in the climate change
context, we should insist that cities establish quantified emissions targets
and demonstrate that their sectoral strategies will achieve these targets. The
concept of sustainability can help cities implement their climate action plans,
but it should not displace a quantified approach.

Depend upon it, Sir, when a man knows he is to be hanged . . . it concentrates his mind wonderfully. Samuel Johnson

What does sustainability mean in an age of climate change? The question presents a dichotomy between the critical importance of acting, regulating, and legislating sustainably and the almost meaningless task of defining sustainability. On the one hand, climate change makes our continued survival and development as a society dependent upon the infiltration and incorporation of sustainability into all contexts and all facets of life. On the other hand, defining sustainability may prove to be a meaningless task (in or out of the climate change context) that misdirects a discourse on how to incorporate sustainability into our lives that must move forward.

Settling on a universal definition of sustainability is difficult (if not impossible) because the real-life application of sustainability is highly contextual and is based on a number of factors, including substantive area of application and geography. For each substantive subject matter, the relevant characteristics and metrics necessary to define or understand the applicable meaning of sustainability change. For example, the role of sustainability in mergers and acquisitions is drastically different than its role in zoning. Similarly, defining sustainability is dependent upon the geographical area: what is sustainable for purposes of land use in rural Africa is fundamentally different from what is sustainable for purposes of land use in dense urban China.

Because applying sustainability is highly contextual, a single definition is relevant to multiple contexts only at a highly generalized level. For example, to garner a definition of sustainability that is relevant to land use in rural Africa and land use in urban China we may sacrifice all helpful specifics of the term. Common generalized definitions include the triple bottom line of economic prosperity, environmental quality, and social justice, along with intergenerational equity. Those generalized definitions are insufficient to move sustainability forward in any concrete way. They provide minimal value in directing or promoting actual changes necessary to avoid climate catastrophe. They tell CEOs and local planners, for example, little operationally about how to measure sustainability in a particular context, how to monitor it, or how to move towards a sustainable society.

And yet, while defining sustainability may provide little benefit, the functional application of sustainability could not be more meaningful. Sustainability serves to fundamentally change the way we approach almost every aspect of our lives. It requires us to alter our thinking in how we understand and solve the challenges we face, including expanding the relevant inquiry to seek (in the words of Keith Hirokawa) “a more rigorous pursuit of equity as a matter of governance, a more honest incorporation of economics into environmental quality considerations, and a more effective regulation of the interaction between the natural and built environments.” Thus, the question of how we incorporate sustainability into our lives in a specific context is a far more relevant and proactive inquiry that can have a positive effect on climate change.

I recognize that some definitions of sustainability may be attempting to achieve something other than an operational roadmap to meet the challenges of the future. Rather, those definitions are to provide us with a starting point and the flexibility to apply sustainability to a variety of contexts. They are purposefully broad and inclusive to be applicable to a large spectrum of substantive areas. If true, we have achieved this objective. Now, our focus and resources should be spent on designing creative solutions to apply the existing general definitions to new contexts. We will not make the innovative changes necessary to address climate change if we are consumed with obtaining a uniform or universal definition for sustainability. For example, to effect positive change related to sprawl and zoning a conversation with local planners, developers, and community groups about the triple bottom line, intergenerational equity, precautionary principle . . . etc. is a show-stopper. Instead, a conversation about exploring new and concrete options for measuring, baselining, and assessing sustainable zoning and mass transit would get us closer to avoiding climate catastrophe.

The pressing need to take action on sustainability is particularly true in an era of climate change. As the effects of climate change become more apparent, decisions pertaining to the future of society must be made within the context of the risks associated with climate change. Climate change alters the factors necessary to make a decision, but does not alter the sustainability paradigm. Accordingly, however one defines sustainability, the application of that definition in an era of climate change plays a more prominent role as our survival (a minimum definition of sustainability) depends upon it—and that, to paraphrase Samuel Johnson, should concentrate our minds wonderfully.